Gov performance

American Internet users are telling the Federal Communications Commission that mobile broadband is not a full replacement for fast home Internet service. The week of Aug 7, the FCC kicked off its annual analysis of broadband deployment and signaled that it might determine that smartphone access is a proper substitute for cable or fiber Internet. In doing so, the FCC could conclude that broadband is already being deployed to all Americans in a reasonable and timely fashion, and thus the commission could take fewer steps to promote deployment and competition.

There have been over 300 new comments filed since we wrote about this two days ago, almost universally lambasting the FCC's suggestion that Americans might not need fast home Internet service and could make do with mobile broadband only. Mobile is hindered by data caps, limits on tethering, and reliability problems that make it fall short of a wired Internet connection, people told the FCC.

As the number of online comments in the Federal Communications Commission's network neutrality proceeding soars to record highs, groups on both sides of the debate are calling on Congress to investigate mounting allegations of fake public input. The latest allegations come from the conservative-leaning National Legal and Policy Center (NLPC), which said a whopping 5.8 million pro-net neutrality comments submitted between July 17 and Aug. 4 using the same one sentence appear to be fake. The docket has been plagued for months by charges that many of the comments are duplicates, filed under fake names or submitted without the permission of the people who supposedly signed them. The growing controversy is raising questions about how the comments will be used when the FCC mulls a final order. "It's almost unimaginable how anybody thinks this could do any good," NLPC President Peter Flaherty said.

Even if members of Congress truly want to translate their current pique at institutional dysfunction into genuine deliberation, into a process of “regular order” where committees develop legislation, where would they begin? They’d need to build back a whole lot of lost capacity. Consider some responses from a new survey of senior staff from the Congressional Management Foundation (CMF) titled “State of the Congress: Staff Perspectives on Institutional Capacity in the House and the Senate.”

Below are the percentages of senior staff who said they were “very satisfied” with their chamber’s performance in the following benchmarks:
“The chamber’s human resource support and infrastructure is adequate to support staffers’ official duties (e.g., training, professional development, benefits, etc.)”: 5%
“Members have adequate time and resources to understand, consider, and deliberate policy and legislation”: 6%
“The technological infrastructure is adequate to support Members’ official duties”: 6%
“The chamber has adequate capacity and support (staff, research, capability, infrastructure, etc.) to perform its role in democracy”: 11%

Congress has been de-investing in its institutional capacity for decades, and congressional staff earn absurdly low salaries, leading to high turnover and consistent staff inexperience.

The Office of Personnel Management (OPM) collects and maintains personal data on millions of individuals, including data related to security clearance investigations. In 2015, OPM reported significant breaches of personal information that affected 21.5 million individuals. The Senate report accompanying the Financial Services and General Government Appropriations Act, 2016 included a provision for GAO to review information security at OPM. GAO evaluated OPM's (1) actions since the 2015 reported data breaches to prevent, mitigate, and respond to data breaches involving sensitive personnel records and information; (2) information security policies and practices for implementing selected government-wide initiatives and requirements; and (3) procedures for overseeing the security of OPM information maintained by contractors providing IT services. To do so, GAO examined policies, plans, and procedures and other documents; tested controls for selected systems; and interviewed officials. This is a public version of a sensitive report being issued concurrently. GAO omitted certain specific examples due to the sensitive nature of the information.

GAO is making five recommendations to improve OPM's security. OPM concurred with four of these and partially concurred with the one on validating its corrective actions. GAO continues to believe that implementation of this recommendation is warranted. In GAO's limited distribution report, GAO made nine additional recommendations.

On June 26, 2017, Reps Frank Pallone (R-NJ), Elijah Cummings (D-MD), Diana DeGette (D-CO), Robin Kelly (D-IL), Mike Doyle (D-PA), and Gerald Connolly (D-VA) wrote to the Federal Communications Commission to express concerns about the FCC's cybersecurity preparedness and the multiple reported problems with the FCC's website in taking public comments in the net neutrality proceeding.

On July 21, FCC Chairman Ajit Pai responded by saying the Information Technology (IT) staff at the FCC immediately addressed the disruption to the FCC's Electronic Comment Filing System (ECFS). Chairman Pai wrote, "Although i cannot guarantee that we will not experience further attempts to disrupt our systems, our staff is constantly monitoring and reviewing the situation so that everyone seeking to comment on our proceedings will be afforded the opportunity to do so."

Rep Michael Doyle (D-PA) accused Federal Communications Commission Chairman Ajit Pai of pursuing an agenda that harms both consumers and small businesses. "Chairman Pai, in the time that you have been head of this agency, we have seen an agenda that is anti-consumer, anti-small business, anti-competition, anti-innovation, and anti-opportunity," Rep Doyle said during an FCC oversight hearing held by the House Communications Subcommittee. Rep Doyle pointed to several of Chairman Pai’s decisions, including ending a net neutrality investigation into what Rep Doyle called "anti-competitive zero-rating practices" by AT&T and Verizon Wireless.

Doyle also questioned whether anything would stop Pai's Republican majority from rolling back net neutrality rules and the classification of ISPs as common carriers. Doyle asked Pai, "what kind of comment would cause you to change your mind?" Chairman Pai responded, "economic analysis that shows credibly that there's infrastructure investment that has increased dramatically" since the net neutrality rules went into effect. Chairman Pai said he also would take evidence seriously if it shows that the overall economy would suffer from a net neutrality rollback or that startups and consumers can't thrive without the existing rules.

Congressional Progressive Caucus Co-Chairs Rep Raúl Grijalva (D-AZ) and Mark Pocan (D-WI) respond to the Federal Communications Commission’s failure to release 47,000 public complaints that could show the American public's desire to keep the internet open and free. The comment period on a new FCC proposal to undo net neutrality was closed on July 17. National Hispanic Media Coalition had requested the comment deadline be extended until complaints against internet service providers (ISPs) were made public.

“The fact that 47,000 complaints were filed against internet providers since the rules on net neutrality went into place shows an enormous need for these consumer protections. The FCC’s failure, so far, to comply with the FOIA request gives the appearance that they would rather bury these complaints than admit that the current rules are necessary...Internet access can no longer be considered a luxury commodity for the wealthy. The rules governing the internet must ensure it remains free and open and unfortunately President Trump’s new FCC commissioner is moving in the exact opposite direction while ignoring the evidence.”

[Commentary] When President Donald Trump attacked Attorney General Jeff Sessions in a tweet July 25 for not aggressively investigating Hillary Clinton, most attention focused, understandably, on the implications for Sessions. Yet even more alarming than the president’s assault on his own attorney general is President Trump’s return to the “lock her up” theme of his 2016 campaign.

Members of Congress who are, properly, investigating Russia’s interference in the 2016 race have not questioned President Trump’s legitimacy. Hillary Clinton herself graciously conceded. The FBI thoroughly investigated her e-mail practices and found no basis to prosecute. Yet President Trump now attacks Sessions for taking “a VERY weak position on Hillary Clinton crimes,” implying that a politically inspired re-investigation might help the attorney general keep his job. It is disgusting. What’s at stake is much more than the careers of any particular attorney general or special counsel. The United States has been a role model for the world, and a source of pride for Americans, because it has strived to implement the law fairly. When he attacks that process and seeks revenge on his opponents, President Trump betrays bedrock American values. It’s crucial that other political leaders say so.

The House Commerce Committee’s Communications and Technology Subcommittee held a hearing on July 25, 2017. Lawmakers came to talk Federal Communications Commission oversight; they came to talk FCC oversight; but as with most telecommunications policy discussions these days, network neutrality grabbed the headlines.

Full Committee Chairman Greg Walden (R-OR) announced that he will hold a hearing on September 7 entitled “Ground Rules for the Internet Ecosystem.” He sent invitations to CEOs of leading tech companies -- including Facebook, Alphabet, Amazon, and Netflix -- and broadband providers -- including Comcast, Verizon, AT&T, and Charter Communications -- requesting they testify.

“A strong consensus is forming across party lines and across industries that it’s time for Congress to call a halt on the back-and-forth and set clear net neutrality ground rules for the internet,” said Chairman Walden. “In some form or another, we have been working for at least 20 years on the intertwined goals of incentivizing the huge investments needed to connect Americans, while keeping the internet open and protecting consumer privacy. With almost everyone in agreement about fundamental principles to prevent anti-competitive behavior such as throttling and blocking, I think we are closer than ever to achieving a lasting resolution. The time has come to get everyone to the table and get this figured out.”

In a letter requesting their appearance, Chairman Walden said the open internet rules put in place during the Obama administration — which subject broadband providers to utility-like regulation — “disrupted the longstanding regulatory balance that for years allowed the internet to grow and thrive.” He added, “With your help, I know we can craft a fair, predictable and sustainable solution that not only benefits edge providers and internet service providers, but also the billions of consumers worldwide that deserve a free and open internet.”

Chairman Walden is joined by his counterpart in the Senate, Commerce Committee Chairman John Thune, in a desire to adopt legislation that will end the net neutrality debate.

But these lawmakers so far have offered few specifics, and for the moment, they don’t have much Democratic support. Many in that party have rallied to save the FCC’s existing rules, preferring the Obama administration’s approach. Sen Cory Booker (D-NJ), for example, fears that any attempt to tackle net neutrality with Republicans in charge of the White House and Congress will result in rules that are too weak — and give broadband internet access service providers too much power to tamper with internet traffic.

In her opening remarks at the hearing, Subcommittee Chairman Marsha Blackburn (R-TN) bristled at the suggestion that Republicans are opposed to network neutrality. "Let me be clear. Republicans have always supported a free and open internet." We are trying to "restore the culture of humility lacking under the regulatory cloud left” by former-FCC Chairman Tom Wheeler. She said it was time to move past partisan rhetoric and pass legislation clarifying net neutrality oversight. Subcommittee Vice Chairman Rep. Leonard Lance (R-NJ) agreed and said there was common ground on the need for net neutrality and added that a light-touch approach has strong support.

Subcommittee Ranking Member Mike Doyle (D-PA) pointed to the over 12 million net neutrality comments in the FCC's public file as evidence that there was nothing wrong with the FCC's current net neutrality rules. He said the rules are working and to roll them back would hurt small business and "regular people." Rep Anna Eshoo (D-CA) agreed and said the FCC is barreling down the road toward eliminating critical protections and making it clear that start-ups and small business input is not as valued as special interests. “If the FCC moves ahead with its net neutrality plan the consequences will be severe,” said Rep. Frank Pallone (D-NJ), the ranking member of the full House Commerce Committee. “Their plan will have a chilling influence on our democracy, cut away at our connections with each other, and limit economic opportunities for the future.”

Morning Consult reports that the key takeaway from the hearing is that Democratic and Republican members of Congress both support net neutrality — they just have different definitions for the term.

Chairman Walden asked all the FCC commissioners if they support net neutrality. Chairman Pai said he favors “a free and open internet.” But Rep. Anna Eshoo (D-CA) took issue, telling him that his chairmanship “rests on the altar of dismantling net neutrality as we know it.”

“With all due respect to you, I don’t think it’s a credible statement to say that you support it,” she added.

FCC Commissioner Mignon Clyburn said that maintaining classification of broadband services under Title II of the Communications Act will ensure competition and drive greater service availability. “Taking away Title II for broadband undercuts our ability to ensure universal service for broadband by taking away our clearest source of authority to make sure all Americans are connected,” Commissioner Clyburn said. “Undoing our classification of broadband as a Title II service also harms the FCC’s ability to enable competition. There is specific authority in sections 224 and 253 of the Communications Act that allows the FCC to enable competitive access to monopoly infrastructure, and to remove other barriers to competition. Without Title II, it will be far more difficult for the Commission to enact policies to enable competition.” Commissioner Clyburn also pointed to how Title II helps to ensure privacy.

“We adopted rules of the road for broadband privacy last October and they were stripped away earlier this year with the passage of the Congressional Review Act (CRA) resolution of disapproval which means today, there are no comprehensive rules on the books protecting broadband consumer privacy for Americans,” Commissioner Clyburn said.

But FCC Commissioner Michael O'Rielly said “the term net neutrality means so many different things these days than it once did.”

GOP lawmakers presented themselves as advocates of the concept of net neutrality, while simultaneously targeting the 2015 Open Internet Order which reclassified broadband Internet access service as a Title II service. Chairman Blackburn, for example was drawing a distinction between supporting a rollback of the net neutrality protections and the idea that such a move would limit internet access for users, saying that “Republicans have always supported a free and open internet.” Republicans say net neutrality limits investment and growth of internet service providers, while advocates say a rollback of the Obama-era regulation would allow ISPs to throttle, block or slow connectivity. Their argument echoed one that has been used by ISPs like Comcast and Verizon.

“Everybody says they’re for an open internet,” said Rep. Peter Welch (D-VT). “The question I have is: Why change the existing regime where everyone agrees that there is an open internet?”

Past network neutrality, the hearing considered a discussion draft reflecting, among other things, the Commerce Committee’s ongoing efforts to improve the FCC’s process and transparency. Here’s some quick notes:

1. Chairman Pallone questioned Chairman Pai about decisions that have favored Sinclair Broadcast Group. He asked if the Trump Administration has tried to influence these actions. Chairman Pai answered that the White House has not contacted him about the proposed merger of Sinclair and Tribune or the FCC's decision to restore the UHF discount, which helped pave the way for that deal.
2. Commissioner Clyburn criticized FCC Chairman Ajit’s Pai decision to allow Sinclair to purchase of Bonten's seven stations. She told the subcommittee that she was kept in the dark about the bureau-level decision, which, she suggested, was hardly in keeping with Chairman Pai's promise for more transparency.
3. Chairman Pai warned the subcommittee that unless Congress authorizes more money, broadcasters will have to pay some portion of their post-incentive auction repack expenses. FCC Commissioner Michael O’Rielly testified that it may be a little early to declare the $1.75 billion post-auction repack fund insufficient.
4. Chairman Pai said that if the facts warrant and the law allows it, the FCC will be aggressive about freeing up TV band white spaces for rural broadband.

The US Federal Communications Commission says it has no written analysis of DDoS attacks that hit the commission's net neutrality comment system in May. In its response to a Freedom of Information Act (FoIA) request filed by Gizmodo, the FCC said its analysis of DDoS attacks "stemmed from real time observation and feedback by Commission IT staff and did not result in written documentation." Gizmodo had asked for a copy of any records related to the FCC analysis that concluded DDoS attacks had taken place.

Because there was no "written documentation," the FCC provided no documents in response to this portion of the Gizmodo FoIA request. The FCC also declined to release 209 pages of records, citing several exemptions to the FoIA law. For example, publication of documents related to "staffing decisions made by Commission supervisors, draft talking points, staff summaries of congressional letters, and policy suggestions from staff" could "harm the Commission’s deliberative processes," the FCC said. "Release of this information would chill deliberations within the Commission and impede the candid exchange of ideas."